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Court hears Black appeal

CHICAGO–Most people have an opinion about Conrad Black's curious decision on a holiday weekend in May 2005 to spirit 13 boxes of documents out the back door of his Toronto office, even though a court order prohibited such a move.

Here's U.S. appeals court judge Richard Posner's view: "The timing was bizarre, the removal of the documents in the middle of an investigation."

Posner was one of three judges who heard arguments at Black's appeal yesterday.

The hearing marked one of Black's last chances to topple one or more of the convictions secured against him last July.

While Black did not attend, his wife Barbara Amiel did. The former newspaper magnate began serving a 6 1/2-year jail sentence at a low-security prison in Coleman, Fla. in March.

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Black's appeals lawyer Andrew Frey received the brunt of scrutiny from Posner and the two other judges.

"This is the weakest case I've seen in 45 years," Frey said at the outset.

Frey argued the documents Black took from Hollinger Inc.'s office at 10 Toronto St. were combed through extensively by lawyers before he removed them. Any evidence the government presented during Black's trial "doesn't prove beyond a reasonable doubt his intent to conceal or destroy (documents)," Frey said.

Posner pointed out the lawyers who had access the papers were members of Black's legal team, not prosecutors.

That was a key point, prosecutor Ed Siskel said later. "While we do know that Mr. Black returned the boxes when he was required to do so six days later, there is no way of knowing what was removed. There was no catalogue done of those boxes before they were removed," Siskel said. "It is an inference ... of his corrupt intent."

The appeals court is starkly different from the district court that heard the original trial. While District Court Judge Amy St. Eve allowed lawyers to address the court for hours at a time, the appellate judges routinely interrupt lawyers.

Last July, Black, government witness David Radler, and two other former Hollinger International executives were convicted of illegally taking money in two separate transactions. In one deal, they argued $600,000 (U.S.) was owed to them as payment for pledging not to compete with the purchasers of some Hollinger papers.

The four also took and shared $5.5 million, claiming the money was paid after they promised not to compete with a Hollinger subsidiary for three years after they left the company.

``These were agreements that the defendants decided amongst themselves to use to disguise their theft,'' Siskel told the court.

Posner later put it to Frey: "That's very straightforward, right?"

Defence lawyers also attacked St. Eve's so-called "ostrich instruction'' to the jury. The instruction allows the jury to convict if it believes someone wilfully avoids knowing about a crime.

Siskel defended the instruction, insisting non-compete payments were made to Black and other company executives under "suspicious circumstances.''

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